White v. Redman Corp., Record No. 2954-02-2.

• Court: Court of Appeals of Virginia
• Citation: 584 S.E.2d 462,41 Va. App. 287
• Docket Number: Record No. 2954-02-2.
• Parties: Steven L. WHITE v. REDMAN CORPORATION and Twin City Fire Insurance Company.
• Decision Date: 05 August 2003

584 S.E.2d 462
41 Va. App. 287

Steven L. WHITE
v.
REDMAN CORPORATION and Twin City Fire Insurance Company

Record No. 2954-02-2.

Court of Appeals of Virginia.

August 5, 2003.

Stephen T. Harper (Kerns, Kastenbaum & Reinhardt, P.L.C., on brief), Richmond, for appellant.

S. Vernon Priddy III (Sands Anderson Marks & Miller, on brief), Richmond, for appellees.

Present: BENTON, BUMGARDNER and McCLANAHAN, JJ.

McCLANAHAN, Judge.

Steven L. White (claimant) appeals a decision of the Virginia Workers' Compensation Commission denying his claim for compensation

584 S.E.2d 463

benefits after December 13, 2000. Claimant contends that the commission incorrectly held that (1) claimant was not entitled to a finding of a de facto award, and (2) claimant had a duty to market his residual capacity to work after December 13, 2000. For the reasons that follow, we affirm the decision of the commission

I. Background

Claimant, a resident of New York, began working in Virginia as an ironworker with Redman Corporation, a bridge building company, in the fall of 1999. On February 23, 2000, claimant suffered multiple fractures to his pelvis, right elbow, right arm, right hand and legs due to an accidental fall from a bridge. Claimant was initially treated for his injuries by orthopedic surgeon Dr. Robert Adelaar. After discharge from the hospital, on March 3, 2000, claimant required home health care for approximately two months.

Employer began making voluntary payments on February 24, 2000 in the amount of $407.82, based on an average weekly wage of $611.73. On April 13, 2000, claimant filed a Claim for Benefits for accidental injury, seeking permanent disability benefits beginning February 24, 2000 and continuing. On July 14, 2000, employer sent claimant a proposed "Memorandum of Agreement" to pay benefits. The agreement form reflected that employer would pay temporary total benefits of $407.82 per week based on an average weekly wage of $611.73, consistent with the voluntary payments employer had been making since the day after the injury. A letter enclosed with the agreement form requested that claimant sign the agreement and return it to employer as soon as possible so it could be submitted to the commission.

On September 18, 2000, claimant sent letters to the commission and employer acknowledging receipt of the agreement form and disputing the employer's average weekly wage calculation. There was no evidence that the agreement form was ever signed by the claimant or that it was ever submitted to the commission.

On December 13, 2000, a doctor with whom claimant was consulting in New York, reported on a New York State Workers' Compensation form that claimant was able to perform light duty. Also on December 13th, claimant sent a letter to the commission requesting a continuance and acknowledging that employer was raising a defense of failure to market. The commission granted the request for continuance until September 24, 2001, when the matter went to hearing.

At hearing, the parties stipulated that, (1)...